Law Commons^™

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

Judicial Adjuncts In Multidistrict Litigation, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

Peeking under the tent of our nation's largest and often most impactful cases reveals that judges often act like ringmasters: They delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, however, contend that delegating judicial power especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs. By constructing an original dataset of ninety-two multidistrict products liability proceedings centralized over fourteen years, we introduce …

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

Faculty Publications

Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals …

Closing The Door To Lost Earnings Under The National Childhood Vaccine Injury Act Of 1986, Aaron M. Levin

Aaron M Levin

After a wave of lawsuits against vaccine manufacturers hindered the profitability and production of life-saving vaccines, Congress enacted The National Childhood Vaccine Injury Act of 1986. The Act offers an incentive for individuals to get vaccinated in order to mitigate the population’s exposure to disease, while encouraging the continued production of these serums by pharmaceutical companies. Although imperfect, the Vaccine Act fosters promise in filtering out frivolous claims and provides a central route for due process to the individuals who suffer from a vaccine-related injury. By removing a potential state tort issue to the Federal Circuit, Congress created a reasonably …

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …

Everything Is Presumed In Texas, Benjamin Walther

Benjamin Walther

As this Article will reveal, the Fifth Circuit has traditionally been loath to apply the presumption against preemption in most cases. Texas courts, on the other hand, have consistently employed a particularly strong application of the presumption to all types of preemption cases. This inconsistency between these two jurisdictions creates an incentive for forum shopping. Generally, the courts rely on a defendant’s ability to remove a case to the federal courts to counteract the plaintiff’s exclusive power to decide the forum. This ability, however, is not available to a defendant within the context of preemption cases. As such, there is …

Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng

Jennifer E Spreng

Problem-solving is the manifestation of a lawyer’s expertise. Unfortunately, the first year of law school is too highly compartmentalized and often semi-rote-learning experience that does not disturb what are many students’ passive undergraduate school learning strategies. Once taught the same way in law school, students are unlikely to develop the more intellectually sophisticated, relational learning strategies to make the cross-topical and cross-disciplinary connections of which problem-solving expertise is made.

This article argues that horizontally and vertically integrated first-year courses with spiral designs that prioritize honing students’ analytical and problem-solving capacities can break this cycle and prepare students with more self-directed …

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

Texas Supreme Court Rejects “Any Exposure” Causation In Asbestos Litigation, Richard O. Faulk

Richard Faulk

The Texas Supreme Court has firmly rejected the latest effort to reopen the floodgates for asbestos litigation in Texas. While the Court rejected a formalistic adherence to “but for” causation in mesothelioma, the essence of “but for” still survives because, “but for” legally sufficient proof of exposure to the particular defendant’s product, the defendant cannot be held liable. The requirement of legally sufficient proof applicable to exposure to each defendant’s product remains, and the challenges associated with meeting that requirement remain the same. Perhaps the cohesiveness of this holding will influence other states to define “substantial factor” similarly, or perhaps …

Off-Road Torts: The Difficulties Of Representing A Client Injured Due To Defects In Vehicles Modified For Off-Road Use Or Injured Due To A Dangerous Condition Of The Land., Nicholas Morgan

Nicholas Morgan

No abstract provided.

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Donald G Gifford

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Quest For The Next ‘Solvent Bystander’ In Asbestos Litigation: Will Texas Resume The Search?, Richard O. Faulk

Richard Faulk

Questions abound regarding the Bostic v. Georgia Pacific case. Is Texas preparing to resume the “endless search” for the next “solvent bystander?” Is the Texas Supreme Court considering a departure not only from Flores, but also from decades of settled Texas law regarding causation in tort cases? Hopefully, the memory of the disastrous and wasteful “cold war” of asbestos litigation will persist and rational common-law limits will not be sacrificed to resurrect a demonstrably abusive system.

Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield

Eric Porterfield

Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …

R2dford: Autonomous Vehicles And The Legal Implications Of Varying Liability Structures, Alexander P. Herd

Alexander P Herd

The World Health Organization estimates that by 2030, traffic accidents will be the fifth leading cause of death in the world. Thus when Google announced that it had designed an autonomous car which could reduce traffic accidents by as much as ninety percent, there was cause for excitement. Some states have already started legislation to permit the use of autonomous cars in anticipation of the release later this decade. Courts and lawmakers need to consider who will be liable when the car that drives itself crashes. Standards used in aviation and naval cases regarding auto-pilot can be applied to the …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Addiction Postulates And Legal Causation, Or Who's In Charge, Person Or Brain?, David L. Wallace

David L Wallace

In this article, I address the persistent confusion over the meaning of a medical diagnosis of drug addiction or substance dependence in the courtroom, specifically in regard to legal judgments about the reasonable legal person, causation, and individual responsibility in civil actions. Using the example of the Engle tobacco litigation in Florida, where the plaintiffs have reduced mind to brain and claimed that the clinical status of addiction excuses or mitigates the smoker’s responsibility for the health consequences of smoking based on brain processes, I examine the conceptual difficulties presented by use of biomedical models of behavior in a legal …

Too Much Process, Not Enough Service: International Service Of Process Under The Hague Service Convention, Eric Porterfield

Eric Porterfield

Service of process under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is too costly, time consuming, and unreliable. The Hague Service Convention’s defining feature – the Central Authority system – adds unwarranted expense and delay to the already expensive and protracted process of civil litigation. Worse, however, is the fact that the Central Authority completely fails to effect service on a foreign party in a significant percentage of cases. For decades, courts and commentators have argued over whether the Hague Service Convention actually permits litigants to sidestep the …

Lawyers, Food, And Money, David L. Wallace

David L Wallace

No abstract provided.

Sue My Car Not Me: Products Liability And Accidents Involving Autonomous Vehicles, Jeffrey K. Gurney

Jeffrey K Gurney

Autonomous vehicles will revolutionize society within the decade. These cars will cause accidents. Tort liability, however, is not ready for the introduction of autonomous vehicles, and, thus, liability will not be assessed to the party that is responsible for the accident. This Article addresses the liability of autonomous vehicle by examining products liability through the use of four scenarios: the Distracted Driver; the Diminished Capabilities Driver; the Disabled Driver; and the Attentive Driver.Based on those scenarios, this Article argues that the autonomous technology manufacturer should be liable for accidents while the vehicle is in autonomous mode. This Article suggests that …

An Ind. Run Around The U.C.C.: The Use (Or Abuse?) Of Indemnity, Paul J. Wilkinson

Pepperdine Law Review

No abstract provided.

An Analysis Of Warranty Claims Instituted By Non-Privity Plaintiffs In Jurisdictions That Have Adopted Uniform Commercial Code Section 2-318 (Alternative A), William L. Stallworth

Pepperdine Law Review

No abstract provided.

Lead Paint Public Entity Lawsuits: Has The Broad Stroke Of Tobacco And Firearms Litigation Painted A Troubling Picture For Lead Paint Manufacturers?, Amber E. Dean

Pepperdine Law Review

No abstract provided.

Lies, Damned Lies, And Addictions: The Strange Case Of The Disappearing Person And The Bogey Of Determinism, David L. Wallace

David L Wallace

No abstract provided.

An Essay On Torts: States Of Argument, Marshall S. Shapo

Pepperdine Law Review

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Exporting United States Tort Law: The Importance Of Authenticity, Necessity, And Learning From Our Mistakes, Victor E. Schwartz, Christopher E. Appel

Pepperdine Law Review

No abstract provided.

Harms From Exposure To Toxic Substances: The Limits Of Liability Law, Robert L. Rabin

Pepperdine Law Review

n the early 1980s, there was great optimism about the prospects for a dawning era of toxic harms litigation, arising out of a heightened sensitivity to public health and safety concerns. This new sensitivity had been manifested in the preceding decade through a whirlwind of political activity, highlighted by such landmark Congressional legislation as the Clean Air Act, the Federal Water Pollution Control Act, and the Occupational Safety and Health Act, and by the establishment of the Environmental Protection Agency. Along parallel lines, a singularly proactive judicial framework for strict products liability emerged in the mid-1960s from a series of …

The Impact Of U.S. Tort Law In Canada, Lewis N. Klar

Pepperdine Law Review

This paper briefly summarizes some of the reasons offered by Professor Peter Cane for the minimal impact that U.S. tort law has had on the tort law of Australia and New Zealand. It discusses this matter from the perspective of Canadian tort law. It suggests that, for a variety of reasons, Canada is in a unique position; it shares some of the same characteristics of the Commonwealth countries which discourage the adoption of U.S. tort law, but at the same time is exposed to countervailing factors which tend to bring Canadian and U.S. tort laws closer together. It illustrates this …

The Impact Of The Civil Jury On American Tort Law, Michael D. Green

Pepperdine Law Review

This article, a contribution to a symposium on the what American tort law can contribute to the rest of the world expresses skepticism that a considerable swath of U.S. tort law would be of interest to the rest of the world. The thesis is that American tort law has been shaped by the existence of the civil jury, unique to the U.S, and areas of domestic tort law so influenced have no utility internationally. The article catalogues many such areas and discusses several of them.

Addiction And Responsibility: Thoughts On The Misuse And Misunderstanding Of Addiction In The Courtroom, David L. Wallace

David L Wallace

No abstract provided.

A Theory Of Discipline For Professional Misconduct, Nadia Sawicki

Nadia N. Sawicki

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging …